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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to provide for the care and protection of children working in South
Australia; and for other purposes.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Object of Act
4Interpretation
5Meaning of work
6Application of
Act
Part 2—Duties relating to employment
of children
7Employers' duties
8Restrictions relating to nudity
etc
9Employer must provide child worker with certain
information
Part 3—Codes of
practice
10Codes of
practice
11Use of codes of practice in
proceedings
Part 4—Enforcement
12Functions of
inspectors
13Powers of inspectors
Part 5—Miscellaneous
14Confidentiality
15Proceedings for
offences
16No double jeopardy
17Conduct by officers etc of
body corporate
18Offences by body corporate
19Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Child Employment
Act 2011.
This Act will come into operation on a day to be fixed by
proclamation.
The object of this Act is to provide for the care and protection of
children working in this State by ensuring that—
(a) children are not required to undertake work that may be harmful to
their health, safety or development; and
(b) work does not adversely affect children’s schooling.
In this Act, unless the contrary intention appears—
approved code of practice means a code of practice approved
by the Minister under
Part 3, and
includes a revised code of practice approved by the Minister under that
Part;
approved learning program has the same meaning as in
section 75D of the
Education
Act 1972;
child means a person under the age of
18 years;
collector—a child acts as a collector if the
child—
(a) collects or attempts to collect money or property wholly or partly for
a charitable purpose; or
(b) obtains or attempts to obtain money wholly or partly for a charitable
purpose by the sale of a disc, badge, token, flower, ribbon or other
device;
employer means a person who engages a child, or arranges for
a child, to perform work at the direction of the person, whether the child works
for gain or reward or on a voluntary basis; and employment, in
relation to a child, has a corresponding meaning;
guardian, of a child, means a parent of the child, a person
who is the legal guardian of the child or has the legal custody of the child or
any other person who stands in loco parentis to the child and has done so
for a significant length of time;
inspector means an inspector under the Fair
Work Act 1994;
work—see
section 5;
work in the entertainment industry means performing,
standing-in, modelling or public speaking for advertising or entertainment
purposes, but does not include work excluded from the ambit of this definition
by the regulations.
For the purposes of this Act, work, in relation to a child,
means any of the following:
(a) work under a contract of service;
(b) work under a contract (whether or not the contract is a contract of
service) to perform work for labour only or substantially for labour
only;
(c) work under a contract (whether or not the contract is a contract of
service) to perform work, other than work where a personal services business
determination is in effect for the child under section 87-60 of the
Income Tax Assessment Act 1997 of the Commonwealth;
(d) participating or assisting in a business carried on for profit
(whether or not the child receives payment or other reward for the child’s
participation or assistance);
(e) unpaid or voluntary work,
but does not, unless the contrary intention appears, include any of the
following:
(f) domestic chores relating to the child's place of residence;
(g) acting as a carer (within the meaning of the Carers
Recognition Act 2005);
(h) acting as a collector (other than within prescribed
circumstances);
(i) work that is undertaken as part of an approved learning
program.
(1) This Act is in addition to and does not derogate from any other Act or
law of the State relating to the employment of children.
(2) However, in the event of any inconsistency between this Act and
another Act or law, the provisions of this Act prevail.
(3) This Act does not apply to—
(a) employment of a child by the child's guardian; or
(b) employment excluded by regulation from the ambit of this
Act.
Part 2—Duties
relating to employment of children
(1) An employer must,
in respect of each child employed by the employer, ensure so far as is
reasonably practicable, that the child is not required to undertake work
that—
(a) may be harmful to the child's health, safety or development;
or
(b) adversely affects
the child's schooling.
Maximum penalty: $20 000.
(2) The undertaking of work by a child in accordance with an exemption
granted under section 81A of the Education
Act 1972 will not be taken to adversely affect the child's
schooling for the purposes of
subsection (1)(b).
(3) An employer must
not require or permit a child—
(a) to undertake prescribed work; or
(b) to undertake work in a prescribed manner; or
(c) to work at a time when the child is prohibited under this Act from
undertaking the work; or
(d) to work unless appropriately supervised by an adult.
Maximum penalty: $20 000.
(4) It is a defence to a charge of an offence against this section if the
defendant proves that the alleged offence was not committed intentionally and
did not result from any failure on the part of the defendant to take reasonable
care to avoid the commission of the offence.
8—Restrictions
relating to nudity etc
(1) An employer must
not require or permit a child to work if—
(a) the child is naked; or
(b) the child's sexual organs or anus are visible; or
(c) in the case of a female child aged 5 years or more—her
breasts are visible.
Maximum penalty: $20 000.
(2)
Subsection (1)
does not apply to work in the entertainment industry if—
(a) the child is under the age of 12 months; and
(b) a guardian of the
child, who is not the employer of the child, has consented in writing to the
child working in the manner required or permitted by the employer.
(3) In this section—
work includes work that is undertaken as part of an approved
learning program.
9—Employer
must provide child worker with certain information
An employer must, before employing a child to undertake work of a class
prescribed by the regulations for the purposes of this section, provide the
child with a notice in writing relating to the child's employment rights and
obligations in the form, and containing the information, specified by the
Minister by notice in the Gazette.
Maximum penalty: $2 500.
Expiation fee: $210.
(1) The Minister may
approve codes of practice for the purposes of this Act.
(2) Without limiting the generality of
subsection (1), a
code of practice may contain provisions—
(a) designed to prevent—
(i) harm to the health, safety or development of children undertaking
specified work or work of a specified class; or
(ii) any adverse effect on children's schooling; and
(b) regulating children's working hours.
(3) A code of practice may make different provision according to the
classes of children or types of work to which it is expressed to
apply.
(4) A code of
practice may incorporate, adopt or apply, with or without modification, any
other document prepared or published by any body or authority as in force at the
time the code of practice is issued or as in force from time to time.
(5) The Minister may—
(a) approve the revision of the whole or a part of a code of practice;
or
(b) revoke a code of practice.
(6) The Minister must give notice in the Gazette of—
(a) the approval of a code of practice; or
(b) the approval of a revision of the whole or a part of a code of
practice; or
(c) the revocation of a code of practice.
(7) The Minister must cause a copy—
(a) of every approved code of practice; and
(b) if an approved code of practice has been revised and that revision has
been approved—of every approved code of practice as so revised;
and
(c) if an approved code of practice has incorporated, adopted or applied
any document—of every such document,
to be made available for inspection by members of the public without
charge.
(8) An approved code of practice and any approved revision of a code of
practice will come into operation on the day on which the notice of approval is
published in the Gazette or on such later day as may be specified in the
notice.
(9) An approved code of practice or the revision of a code of practice is
subject to disallowance by Parliament.
(10) Every approved code of practice or revision must be laid before both
Houses of Parliament within 14 days of notice of its approval being
published in the Gazette if Parliament is in session or, if Parliament is not
then in session, within 14 days after the commencement of the next session
of Parliament.
(11) If either House
of Parliament passes a resolution disallowing an approved code of practice or
the revision of a code of practice, then the code of practice or revision ceases
to have effect.
(12) A resolution is not effective for the purposes of
subsection (11)
unless passed pursuant to a notice of motion given within 14 sitting days
(which need not all fall in the same session of Parliament) after the day on
which the code of practice was laid before the House.
11—Use
of codes of practice in proceedings
If in proceedings for an offence against this Act it is proved that the
defendant failed to observe a provision of an approved code of practice dealing
with the matter in respect of which the offence is alleged to have been
committed, the defendant is, in the absence of proof to the contrary, to be
taken to have failed to exercise the standard of care required by this
Act.
(1) An inspector's functions under this Act are—
(a) to investigate complaints of non-compliance with this Act;
and
(b) to conduct audits and systematic inspections to monitor compliance
with this Act; and
(c) to conduct promotional campaigns to improve the awareness of
employers, guardians and children of their rights and obligations under this Act
and any other Act or law relating to children working; and
(d) to do anything else that may be appropriate to encourage compliance
and, if appropriate, take action to enforce compliance.
(2) The powers of an inspector under this Act extend to acting in relation
to persons who are no longer engaged in the performance of work.
(1) For the purposes of this Act, an inspector may, at any reasonable
time—
(a) enter premises where the inspector has reasonable cause to believe
that a child is or has been employed; and
(b) require an employer to produce records relating to the employment of a
child; and
(c) examine and copy or take extracts from such records or require an
employer to provide a copy of any such records; and
(d) require a person to answer, to the best of the person's knowledge,
information and belief, any question relevant to the administration or
enforcement of this Act.
(2) An inspector may, in the exercise of powers under this
section—
(a) be accompanied by such assistants as may be necessary or desirable in
the circumstances; and
(b) ask any questions through an interpreter.
(3) A person must not—
(a) hinder or obstruct an inspector or a person assisting an inspector in
the exercise of a power under this section; or
(b) refuse or fail, without lawful excuse, to comply with a requirement
under this section.
Maximum penalty: $5 000.
(4) A person is not required to answer a question under this section if
the answer would tend to incriminate him or her.
(1) A person must not
disclose information if—
(a) the person obtained the information in the course of carrying out
functions in, or related to, the administration, operation or enforcement of
this Act; and
(b) the information is—
(i) about the contents of records kept by an employer under this Act;
or
(ii) about commercial or trading operations; or
(iii) information provided in a return or in response to a request for
information under this Act.
Maximum penalty: $5 000.
(2) However,
subsection (1)
does not prevent a disclosure of information if it is—
(a) a disclosure in the course of official duties; or
(b) a disclosure of statistical information; or
(c) a disclosure made with the consent of the person to whom the
information relates, or who furnished the information; or
(d) a disclosure authorised or required under any other Act or law;
or
(e) a disclosure required by a court or tribunal constituted by law;
or
(f) a disclosure to the Employee Ombudsman; or
(g) a disclosure to an employee or former employee of information required
to be kept under this Act in relation to the employee or former employee;
or
(h) a disclosure made under the authorisation of the Minister;
or
(i) a disclosure
authorised by regulation.
(1) A prosecution for an offence against this Act must be heard and
determined by an industrial magistrate.
(2) In this section—
industrial magistrate means a magistrate assigned by the
Governor under section 19A of the
Fair
Work Act 1994 to be an industrial magistrate.
If an act or omission constitutes an offence—
(a) under this Act; and
(b) under the Education
Act 1972 or the Occupational
Health, Safety and Welfare Act 1986,
the offender is not liable to be punished twice in respect of the
offence.
17—Conduct
by officers etc of body corporate
(1) If it is necessary to establish, for the purposes of this Act, the
state of mind of a body corporate in relation to particular conduct, it is
sufficient to show—
(a) that an officer, director, employee or agent of the body corporate
engaged in the conduct within the scope of his or her actual or apparent
authority; and
(b) that the officer, director, employee or agent had the state of
mind.
(2) Any conduct in which—
(a) an officer, director, employee or agent of the body corporate engages
within the scope of his or her actual or apparent authority; or
(b) another person engages at the direction or with the consent or
agreement (express or implied) of an officer, director, employee or agent of the
body corporate, who gives the direction, consent or agreement within the scope
of the actual or apparent authority,
is, for the purposes of this Act, conduct of the body corporate.
(3) A reference in this section to the state of mind of a person extends
to the knowledge, intent, opinion, belief or purpose of the person and the
person’s reasons for the intent, opinion, belief or purpose.
(a) a body corporate commits an offence against this Act; and
(b) a member of the governing body of the body corporate intentionally
allowed the body corporate to engage in the conduct comprising the
offence,
that person also commits an offence and is liable to the same penalty as
may be imposed for the principal offence.
(2) A person referred to in
subsection (1) may
be prosecuted and convicted of an offence against that subsection whether or not
the body corporate has been prosecuted or convicted of the principal offence
committed by the body corporate.
(1) The Governor may
make such regulations as are contemplated by, or necessary or expedient for the
purposes of, this Act.
(2) Without limiting
the generality of
subsection (1),
the regulations may—
(a) prohibit children from undertaking prescribed work or work of a
prescribed class; and
(b) prohibit children who are of or below a specified age from undertaking
a specified class of work; and
(c) regulate children's working hours; and
(d) permit children, or children of a specified class, to undertake a
specified class of work subject to prescribed conditions; and
(e) provide exemptions (which may be conditional or unconditional) from
specified provisions of this Act; and
(f) provide for the keeping of records under this Act; and
(g) prescribe fees in respect of any matter under this Act and their
payment, recovery or waiver; and
(h) fix fines, not exceeding $2 500, for offences against the
regulations; and
(i) provide for the facilitation of proof of the commission of offences
against the regulations.
(a) make different provision according to the classes of children or types
of work to which they are expressed to apply; and
(b) be of general application or vary in their application according to
prescribed factors; and
(c) incorporate (with or without modification) or operate by reference to
a code of practice relating to children or employment as in force at a
particular time or as amended from time to time by the authority responsible for
its publication; and
(d) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister.